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11/05/87 In Re Estate of Zella Burgeson (Patrick T. Murphy

November 5, 1987



Guardian of Cook County, Petitioner-Appellant, v.

Sheldon Kirshner, Respondent-Appellee)

516 N.E.2d 590, 163 Ill. App. 3d 233, 114 Ill. Dec. 435 1987.IL.1644

Appeal from the Circuit Court of Cook County; the Hon. Henry Budzinski, Judge, presiding.


JUSTICE LINN delivered the opinion of the court. JOHNSON, J., concurs. JUSTICE JIGANTI, Dissenting.


Petitioner, Patrick T. Murphy, the public guardian of Cook County, appeals from an order that denied his petition to vacate portions of two orders entered during probate proceedings in the estate of Zella Burgeson, the deceased. One order approved the final account of the executor, which included the disbursement of attorney fees to respondent, Sheldon Kirshner, the executor's attorney. The other order discharged the special administrator who had been appointed by the court upon Murphy's petition. This order contained a finding that the special administrator had conducted a thorough investigation of the allegations of wrongdoing that Murphy had made against Kirshner, and that he and the court found no impropriety on the part of Kirshner.

Murphy sought to vacate these two orders, entered October 18, 1985, four months after their entry, pursuant to section 2-1401 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401.) His section 2-1401 petition was denied on the grounds that he lacked standing and that he failed to exercise due diligence in bringing the petition.

It is apparent from the papers filed in this court that the parties' emotions run high. Murphy has made serious charges of wrongdoing against Kirshner in connection with his handling of the deceased's estate. For his part, Kirshner charges that Murphy is an interloper who has no interest in or standing to object to the orders entered in the estate proceedings, which proceedings have been resolved to the satisfaction of the executor and all of the heirs of the deceased.

We believe that the threshold question is whether Murphy, either as public guardian or an individual, has standing to move to vacate the orders entered in this cause. We hold that he does not.


Zella Burgeson, the deceased, was an elderly woman living alone in a condominium in May 1982. The board of managers of the condominium wrote to her brother, John Hounsom, expressing their concern for her welfare and stating that she had become senile.

In January 1983 Burgeson signed a power of attorney granting Kirshner authority to take care of her needs and pay her expenses, including his own legal fees.

By 1984 Burgeson's neighbors had found that her apartment was dirty, smelled of urine, and was filled with garbage. Kirshner was informed of these facts. In July 1984 police arrested Burgeson's companion, who had been hired by Kirshner, for allegedly attempting to cash a forged check drawn on Burgeson's account. When the police arrived at Burgeson's apartment they found her slumped on a sofa; her feet were swollen. In the bedroom they found pornographic materials and sexual devices, which presumably belonged to the companion. The charges were ultimately dismissed and the companion disappeared, possibly having stolen additional amounts prior to her departure.

After the police discovered Burgeson alone and neglected, Murphy was appointed as Burgeson's temporary guardian. Both he and Kirshner then sought to be named the plenary guardian of Burgeson. In the guardianship proceedings, Kirshner was represented by attorney John Coleman.

Murphy also initiated disciplinary proceedings against Kirshner before the Attorney Registration and Disciplinary Commission .

On October 10, 1984, during the pendency of the guardianship proceedings, Burgeson died. Her brother, John Hounsom, who lived in Missouri, was appointed executor of her estate. Hounsom was also beneficiary of 75% of the estate under the will. Kirshner was retained as the executor's attorney.

Murphy was discharged as temporary guardian several days after the opening of the decedent's estate. He soon reentered the picture, however, by filing a petition for the appointment of a special administrator, based upon his belief that Kirshner was contesting routine matters, padding his attorney fees, and otherwise bilking the estate. *fn1 The court allowed the motion and appointed an independent special administrator, John A. Doyle. The order of appointment provided that his function was "to make a preliminary investigation as to whether there [was] any basis for the Public Guardian's allegations."

A month or two later, the beneficiaries, including the executor, petitioned the court for removal of the special administrator, submitting affidavits demonstrating their support and approval of Kirshner's handling of the estate. The beneficiaries (except for the executor) were collectively represented by counsel other than Kirshner. Based upon the petition, the special administrator was ordered to refrain from continuing his investigation pending further order of court. At that time he had spent approximately five hours on the investigation. Thereafter, he ceased his activities and ultimately was discharged, upon the closing of the estate and approval of the final account.

In support of the final account, the beneficiaries and the executor filed a second set of affidavits. The executor's affidavit contained invective against Murphy and the police. The other beneficiaries' affidavits contained some hearsay matters. However, all of the affidavits expressed satisfaction with the job that Kirshner had done. The executor expressed his satisfaction with the fees as well, ...

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